UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHIN-TEN HSU, et al., as Executors of the will of Yueh-Lan Wang,

Plaintiffs, v. Civil Action No. 10-1743 (JEB) NEW MIGHTY U.S. TRUST, et al.,

Defendants.

MEMORANDUM OPINION

On February 2, 2018, this Court issued a Memorandum Opinion addressing whether

Plaintiffs’ case should be dismissed under the doctrine of forum non conveniens. Finding that

Taiwan was an adequate alternative forum and that private and public factors counseled in favor

of proceeding in that country, the Court concluded that dismissal was warranted. At that time,

however, it did not grant Defendants’ Motion to Dismiss. The Court instead retained jurisdiction

in order to offer Plaintiffs the opportunity to propose particular conditions for dismissal. They

have now done so and Defendants have responded, opposing certain proposals and accepting

others as appropriate terms. The Court, after considering the positions of both sides, will dismiss

the case pursuant to the conditions set out below.

I. Background

Under the doctrine of forum non conveniens, a district court considers “the convenience

to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain

locality.” MBI Grp., Inc. v. Credit Foncier du Cameroun,

(D.D.C.

2008) (quoting Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp.,

, 429

1 (2007)). If the court determines that (1) an adequate alternative forum exists and (2) public

and/or private factors favor dismissal, it has the discretion to dismiss the case. In doing so, the

court may also impose conditions upon its dismissal. See El–Fadl v. Cent. Bank of Jordan,

(D.C. Cir. 1996), abrogated on other grounds by Samantar v. Yousuf,

(2010) (stating that “the district court may dismiss for forum non conveniens . . .

conditioned on the defendants’ submitting to jurisdiction in Jordan and on the Jordanian courts'

acceptance of the case”). The latitude in determining such conditions has not been explicitly

addressed by this Circuit, but such terms are generally regarded as part and parcel of the district

court’s broad discretion under FNC. See MBI Grp., 558 F. Supp. 2d at 31–32 (noting that “[t]he

D.C. Circuit has expressly authorized” conditional dismissals under FNC) (citing El–Fadl,

); Blanco v. Banco Indus. de Venezuela, S.A.,

(2d Cir. 1993)

(“[F]orum non conveniens dismissals are often appropriately conditioned to protect the party

opposing dismissal.”); In re Banco Santander Sec.-Optimal Litig.,

(S.D. Fla. 2010), aff'd sub nom. Inversiones Mar Octava Limitada v. Banco Santander S.A.,

(11th Cir. 2011) (district court may impose “conditions designed to prevent

prejudice to the plaintiff if the suit is reinstated in the foreign forum”).

In its prior Opinion, the Court addressed Defendants’ Motion to Dismiss under FNC.

The full facts of this case are set out in the earlier Opinions, see Yueh–Lan Wang ex rel. Wong v.

New Mighty U.S. Tr. (Wang I),

(D.D.C. 2012), rev'd sub nom. Wang by &

through Wong v. New Mighty U.S. Tr.,

(D.C. Cir. 2016); Yueh–Lan Wang by &

through Winston Wen–Young Wong v. New Mighty U.S. Tr. (Wang II),

(D.D.C.

2017); Chin-Ten Hsu v. New Mighty U.S. Tr.,

(D.D.C. Feb. 12, 2018), and the

Court will not repeat them in any depth here. Briefly, however, this case is at bottom a dispute

2 between the putative heirs of the deceased Taiwanese magnate Y.C. Wang. See Hsu,

, at *1-2. Defendants, a D.C.-based trust and its affiliates, hold a portion of Y.C.’s assets.

Plaintiffs, the executors of the will of Y.C.’s wife Yueh-Lan Wang, asserted that these funds

were improperly disbursed and resulted in a “shorting” of Yueh-Lan’s marital share of the estate.

Id. at *2. Contending that resolving this contest involved complex questions of Taiwanese

family and marital law – particularly in light of the multiple women claiming to be Y.C.’s wives

– Defendants moved to have the case dismissed in favor of litigation in Taiwan. Id. at *3.

Plaintiffs opposed dismissal under FNC, contending that Taiwan was not an adequate alternative

forum and that the public and private interests favored retaining the suit here.

After a careful analysis, the Court determined that dismissal was the appropriate

outcome. As the Court concluded, Taiwan was an available and adequate alternative forum, the

private factors tipped slightly in favor of dismissal, and the public factors “tip[ped] sharply in

favor” of such an outcome. Id. at *12. In particular, the Court found that there were few local

but “strong Taiwanese” interests at stake, and that resolving the case would “require this Court to

gain a significant level of expertise regarding foreign family and inheritance law, and to resolve a

number of questions of first impression arising under Taiwanese law.” Id. at *12-13. In light of

such concerns, the Court exercised its broad discretion under FNC and determined that dismissal

was the most practical and convenient course. Id. at *14.

It did not, however, actually dismiss the case at that time. Instead, the Court determined

that, in addition to conditioning “[its] dismissal upon Defendants' continued submission to

Taiwan's jurisdiction and waiver of their statute-of-limitations defenses,” it would “provide

[Plaintiffs] with the opportunity to request additional conditions” that would address their

“remaining concerns regarding their ability to re-file in Taiwan.” Id. The Executors took the

3 Court up on that offer and, in late February, filed a Memorandum proposing nine conditions for

dismissal. See ECF 53-1 (Pl. Proposed Conditions). Defendants responded, accepting certain of

Plaintiffs’ proposals but rejecting and modifying others. See ECF 54 (Def. Resp.). The

Executors in turn replied with a somewhat edited version of their original terms. See ECF 55

(Pl. Reply); ECF 55-1 (Pl. Revised Proposed Order). The Court must now determine which, if

any, of these proposed conditions it will apply to its Order of dismissal.

II. Analysis

A. Consent to Jurisdiction

The first condition at issue is the specific Taiwanese court in which Defendants will

submit to service of process and personal jurisdiction, should this case be re-filed overseas. In its

prior Opinion, the Court held that “Taiwan is an available and adequate forum for this suit.”

Hsu,

, at *8. That determination rested in part upon Defendants’ representation

that, should Plaintiffs choose to re-file in that country, they would submit to service of process

and personal jurisdiction before a Taiwanese court. Id. at *5-6. Now, although acquiescing to

that condition generally, Defendants ask the Court to limit such consent to service of process and

jurisdiction solely before a court in Taipei, Taiwan. Plaintiffs respond that such geographic

specificity is unwarranted and unnecessary.

On this condition, the Court agrees with the Executors. Although Defendants note that

the waivers they submitted refer specifically to Taipei, see ECF Nos. 47-9 (Decl. of Susan

Wang), 47-10 (Decl. of William Wong), 47-11 (Decl. of Donald Kozusko), their filings during

litigation were not so limited. Rather, Defendants repeatedly discussed their “concession to

service and jurisdiction in Taiwan,” ECF No. 47-1 (Motion to Dismiss) at 25, their “declarations

agreeing to submit to the jurisdiction of an appropriate court in Taiwan,” and their position that

4 “Taiwan courts will enforce” such agreements. See ECF No. 50 (Def. Reply) at 14-15. This

Court similarly referred to Taiwan, rather than Taipei, when assessing the impact of Defendants’

waivers on the availability of Taiwanese courts. See Wang II,

(finding that

Defendants “effectively concede that they are not amenable to process in Taiwan, but agree in

affidavits to submit themselves to its jurisdiction” and that “on [the] Taiwanese personal-

jurisdiction issue, such a confession is sufficient to overcome any problems”); Hsu,

, at *9 (Defendants “have now consented to . . . foreign jurisdiction” in Taiwan). In light

of Defendants’ representations throughout this case and the conclusions of the prior Opinions,

the Court is satisfied that the equitable outcome is to condition dismissal upon Defendants’

consent to service of process and personal jurisdiction in Taiwan generally, rather than Taipei

specifically.

The Court also notes that Defendants are unable to provide any legal precedent for

conditioning dismissal upon consent to jurisdiction in a foreign city rather than in a nation. Cf.

MBI Grp., 558 F. Supp. 2d at 31–32 (conditioning dismissal upon defendants’ submitting to

jurisdiction in Cameroon); El–Fadl,

(conditioning dismissal on defendants’

submitting to jurisdiction in Jordan). They have, moreover, offered no evidence that Taipei is

the only proper venue for Plaintiffs’ claims in Taiwan nor given any other rationale for their

desire to restrict jurisdiction to a given city. Indeed, such geographic specificity is not required

when determining whether a foreign system is available and adequate under FNC; the doctrine

instead allows courts to avoid making in-depth inquiries into foreign law. See Hsu,

, at *12 (public-interest factors include “the avoidance of unnecessary problems . . . in the

application of foreign law”); In re Air Crash Off Long Island, N.Y., on July 17, 1996,

(S.D.N.Y. 1999) (noting that “inquiry into foreign jurisdictional law . . . [is]

5 easily obviated by use of the typical conditional dismissal device”). The Court therefore declines

to delve into the minutiae of Taiwanese venue provisions or potential distinctions among its

various courts. It instead will condition its dismissal upon Defendants’ consent to service of

process and personal jurisdiction in Taiwan writ large.

B. Waiver of Defenses

The second condition proposed by Plaintiffs addresses Defendants’ waiver of statute-of-

limitations and other similar defenses. The Executors request that the Court condition its

dismissal upon Defendants’ waiving “any defenses based on limitations, statute of limitations,

statutes of repose and/or laches.” Rev. Proposed Order at 1. They propose that this waiver be

applied to “any of the claims asserted in the Second Amended Complaint or any additional

claims that Plaintiffs assert against Defendants in the Taiwan Action that arise out of the

conduct, transactions or occurrences set out – or attempted to be set out – in the Second

Amended Complaint as that clause within Rule 15(c) of the Federal Rules of Civil Procedure”

has been interpreted by U.S. courts.

Although Defendants accept the types of defenses listed

in this condition – i.e., those based on limitations, repose, and/or laches – they object to the

breadth of the claims to which the waiver would apply. According to Defendants, the waiver of

such defenses should be applied only to “the claims asserted in the Second Amended

Complaint.” ECF 54-1 (Def. Proposed Order).

On this issue, the Court finds that a middle ground between the parties’ positions is the

appropriate condition. It agrees with the Executors that Defendants’ waiver should extend

beyond the specific claims explicitly pleaded in the Second Amended Complaint, as Taiwanese

law may require Plaintiffs to bring slightly different counts in order to vindicate the same

grievances alleged before this Court. The language proposed by Plaintiffs is, however, overly

6 broad – particularly the phrase regarding those claims “attempted to be set out” in the Second

Amended Complaint. The Court will therefore condition its dismissal upon Defendants’ waiver

of the listed statute-of-limitations and other temporal defenses with respect to those claims

asserted in the Second Amended Complaint or substantively congruent claims as pled in

accordance with Taiwanese law.

C. Additional Parties and Power of Attorney

The Executors and Defendants agree as to the former’s third and fourth proposed

conditions. The third would preclude Defendants from arguing that the case, if re-filed in

Taiwan, should be dismissed on the ground that additional necessary or indispensable parties

could not be joined to the action. See Proposed Conditions at 2. The fourth states that

Defendants will not argue that the case should be dismissed based upon the action in this Court

having been commenced by Winston Wen-Young Wong on Yueh-Lan Wang’s behalf pursuant

to a power of attorney.

These conditions are both reasonable and, given the parties’

consensus, the Court will include them in its Order of dismissal.

D. Discovery

As to the Plaintiffs’ fifth proposed condition, the parties once more diverge. The

Executors assert that this Court should condition its dismissal upon the parties being subject to

“pre-trial discovery pursuant to and in accordance with the Federal Rules of Civil Procedure”

and upon Defendants’ making “available . . . all relevant witnesses and documents to the extent”

that such production would be available under the Federal Rules. See Rev. Proposed Order at 2.

Defendants respond that this proposal is “wholly unrelated to Plaintiffs’ ability to re-file the

action in Taiwan,” and that their apparent concerns regarding the availability of discovery were

already evaluated by this Court in its prior Opinion. See Def. Resp. at 8.

7 The Court agrees. In assessing the viability of Taiwan as an alternate forum, the previous

Opinion examined the availability of discovery and the production of witnesses and relevant

materials. Noting that “a foreign forum's restrictive discovery or procedural rules do not render

that forum inadequate,” the Court determined that the discovery devices available if this case

were re-filed in Taiwan, including

, were sufficient so as to render the country a

“viable alternative forum.” Hsu,

, at *7 (internal quotation marks omitted).

The Court similarly rejected Plaintiffs’ argument that they would be impermissibly hindered in

procuring relevant proof and witnesses if they chose to litigate in Taiwan. Id. at *11-12. In light

of these findings, the Court sees no need to re-visit the issues of discovery and evidentiary

access. It is, moreover, reluctant to reach into the domain of Taiwanese courts in order to impose

domestic rules of civil procedure on such foreign proceedings. The Court will subsequently not

condition its dismissal upon the use of any particular discovery mechanisms or the consent of

Defendants to the production of materials or witnesses.

E. Non-Parties

The Executors next propose that “any non-party to this action that maintains a governing

body” made up of the same persons as those who comprise Defendant New Mighty U.S. Trust’s

“Trust Managers” shall “waive any jurisdictional defenses to the giving of evidence in the

Taiwan Action,” “consent to the jurisdiction of the Taiwan court,” “submit and be subject to pre-

trial discovery” in accordance with the F.R.C.P., and “appear for the trial of the Taiwan Action,

if called to provide evidence.” Rev. Proposed Order at 2-3. Defendants oppose this condition,

contending that it is again “unrelated to Plaintiffs’ ability to re-file this action in Taiwan,” and

that this Court “has no jurisdiction over these largely unidentified non-parties” such that it could

order compliance with the proposed condition. See Def. Resp. at 8-9. The Court, once more,

8 sides with Defendants. The prior Opinion quite clearly gave Plaintiffs “the opportunity to

request that additional reasonable conditions be imposed on dismissal” to address “concerns

remain[ing] regarding [their] ability to re-file in Taiwan.” Hsu,

, at *6. This

was not, contrary to Plaintiffs’ apparent interpretation, a carte blanche invitation to propose any

and all conditions that would benefit the Executors if they proceed there. The inquiry under

FNC – and the analysis in the Court’s prior Opinion – is focused on the availability and

adequacy of an alternate forum, not the nuances of each party’s respective advantages or

disadvantages if the suit is brought abroad. While Plaintiffs may certainly wish to compel non-

parties to testify in Taiwan, such a requirement is not a reasonable condition for dismissal in this

case.

F. Enforcement of Judgment

Plaintiffs’ seventh condition would require Defendants to “satisfy any judgment rendered

against them by the Taiwan Court in the Taiwan Action, without the need for Plaintiffs to seek to

domesticate or enforce the judgment.” Rev. Proposed Conditions at 3. Defendants again

respond that this requirement is not an appropriate condition for dismissal. They contend that the

issue of enforceability was already addressed in the Court’s prior Opinion and that it is, once

more, untethered from the Executors’ “ability to re-file this action in Taiwan.” Def. Resp. at 10.

On this issue, Defendants again have the better argument. The Court already concluded

that “enforceability of a foreign judgment is not a necessary condition for FNC dismissal.” Hsu,

, at *8. Beyond not being a requirement for dismissal, it is also one of the only

terms that has been held to be improper. In In re Union Carbide,

(2d Cir. 1987),

the Second Circuit held that the district court had erred when it dismissed a case under FNC

conditioned upon the defendant’s “consent[ing] to the enforcement of a final [foreign]

9 judgment.”

. Such a condition was improper, the Circuit held, because “the district

court’s jurisdiction is limited to proceedings before it in this country,” and “[o]nce it dismisses

those proceedings on grounds of forum non conveniens[,] it ceases to have any further

jurisdiction over the matter unless and until a proceeding . . . [is] brought here to enforce a”

foreign judgment.

; see Banco De Seguros Del Estado v. J.P. Morgan Chase & Co.,

(S.D.N.Y. 2007) (rejecting condition that defendants “consent to

enforcement of a judgment against them” under Union Carbide but imposing conditions that

defendants submit to jurisdiction and service of process in Uruguay); but see Feenerty v.

Swiftdrill, Inc.,

(E.D. Tex. 1989) (conditioning FNC dismissal upon

defendants’ agreement “to satisfy any final judgment rendered by a court of competent

jurisdiction in the United Kingdom”). Although such precedent is of course not binding on this

Court, its reasoning that district courts should avoid “retain[ing] some sort of supervisory

jurisdiction” over cases dismissed under FNC is persuasive in light of the intent behind the

doctrine – namely, that the case is better brought in toto in a different jurisdiction. In re Union

Carbide,

. The Court therefore will not condition its dismissal upon any

prospective enforcement agreement between the parties.

G. Re-Opening

The next condition proposed by the Executors addresses the circumstances under which

this case could be re-filed in the District. Plaintiffs request that if they “determine, in good faith,

that any of [the imposed conditions] have not been met or have been violated, [they] may move

before this Court to immediately re-open and re-instate this action.” Rev. Proposed Order at 3.

Defendants rejoin that “there is simply no basis for including such a provision in the dismissal

order,” as it does not address Plaintiffs’ ability to re-file in Taiwan, and it is, moreover, “highly

10 suggestive” of the inference that the Executors aim to “bring the action back to this Court.” Def.

Resp. at 10. Although the Court notes that other cases dismissing under FNC have conditioned

dismissal upon a foreign court’s actual acceptance of the case, see Delgado v. Shell Oil Co.,

, 1356–57 (S.D. Tex. 1995), aff'd,

(5th Cir. 2000) (conditioning

dismissal “upon acceptance of jurisdiction by the foreign court[]”), it finds that Plaintiffs’

proposed language on this issue is overly broad. Indeed, it fears that relying upon the Executors’

“good faith” determination may result in this case boomeranging right back into the District of

Columbia. The Court will therefore not condition its dismissal upon a given standard for re-

opening or re-instating this case.

H. Expiration of Order

Finally, Plaintiffs propose that the conditions set forth in the Court’s forthcoming

dismissal Order expire 90 days after either “the issuance of a final judgment on any appeal and

any petition taken in this action” or “the expiration of the applicable time period(s) within which

to file any such appeal or petition.” Rev. Proposed Order at 4. Defendants would prefer that the

Court instead give the Executors a 45-day window in which to re-file the action in Taiwan. See

Def. Resp. at 11. The Court on this issue will adopt Plaintiffs’ proposed condition, as it is a

reasonable request in light of their right to appeal.

III. Conclusion

For the reasons set forth above, the Court will condition its dismissal upon a limited set

of reasonable terms. A contemporaneous Order dismissing this case and setting out such

conditions will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

11 Date: April 3, 2018

12